Job demotion after returning from FMLA

[ecmst12]

The regulatory agency for FMLA is the US DOL, not the EEOC. I wouldn't hire a lawyer that didn't know that.

 

[Tygerwoody]

You were right. The DOL was the correct place to go see. I spoke with them today and they said that until I speak with my internal HR that it wouldn't be wise to push forward a case through them.

I did what they said. I spoke to HR. Of course HR was trying to side with my boss stating "well, your pay grade band didn't change and your benefits didn't change so it looks like you did receive an equivalent job. Maybe you just need to understand your new position a bit better." . My HR rep (as expected) said everything she could to try to make me not want to push forward with anything and just accept what I had been given. I made it very clear to her that I had spoken to a lawyer and the Department of Labor and I will not let this settle without resolution. She changed her tone then and asked "well what do you want". I responded that I just wanted my job back or an equivalent job.

She then reminded me that I signed a form upon hiring that I would not seek external law against the company until going through the internal dispute resolution process. She said they are going to contact their employee lawyer to speak with me in mediation about my situation before I seek external.

Now she said the "Ball is in her court". That she is going to handle it on the HR side. Is there anything I should do between now and then? I've continued to do the training for the new job they appointed me. Now is it just a matter of waiting? What should I be prepared for in this "mediation" ?

 

[Tygerwoody]

anyone have any advice?

 

[Tygerwoody]

Hey guys. More than likely this coming Monday or Tuesday I will have a meeting with HR, my boss, and their lawyer. I would like to be prepared. Can somebody please let me know?

 

[ecmst12]

I would want my own lawyer if they are going to have one.

 

[Tygerwoody]

do they have the right to say I can't bring a lawyer?

 

[ESteele]

You do not have a “right” to have your own counsel at a private meeting with your employer’s representatives (notwithstanding the fact one of them is an attorney). Indeed, you probably would not need one at that juncture. Primarily, you should listen intently and take notes.

If this matter is not resolved satisfactorily at the upcoming meeting, you will probably want to retain counsel at least to have someone knowledgeable who you can consult as this matter develops.

 

[Tygerwoody]

So tomorrow I have an hour and a half meeting scheduled with two HR representatives and their lawyer. They say its a "mediation", but I have a feeling its just going to be them 3 backing me into a corner and probing me for reasons that will only have negative consequences against me.


I'm debating on just keeping my mouth shut instead of talking. Thoughts?

 

[commentator]

My thoughts are that you talk little and listen much. But going in and refusing to say ANYTHING would be sort of silly. Keep very good notes of what was said. In fact, it wouldn't be a bad idea to record the meeting. Bring a tape recorder. N.C. is a one party tape state. Taping can be done without the other party's consent.

State your case. State your belief that the job is not equivalent, and the reasons why. Consider this a formal hearing, not a discussion group. Do not let them "probe you." IF you do not talk too much, make only short clear statements, they can't
back you into a corner. DO NOT argue with them, no matter what sort of ridiculous or threatening or incorrect statement they may make. Do not take it personally if they say you were demoted because your work was not good. Be expecting that one.

Remember, you do not have to answer a question just because it is asked.

Present your case as you have presented it to us here. The part about how before you were on FMLA, you were clearly told you would be taking on more responsibility. How the new position is different. What the different clearances are. State that what you want is your old job back. Do not let them pull you into arguing. Have statements in mind that you wish to make. Do not show excess emotion, resist any impules to tell them off, don't get angry, or in any way indicate that you will or will not pursue the matter further. Ask them what they are planning to do to resolve the situation. Ask when you can expect to hear back from them that they are taking action regarding the situation.

Be quiet, professional, polite. Actually, you do have them rather over a barrel here, if what you are saying is right. They should realize this and be willing to offer you some concessions. It's okay to have it in your mind that you will or will not accept these concessions. But DO NOT decide during the meeting to accept anything they offer without being given the opportunity to take it out and "think about it" before accepting. If they demand you do so, insist you settle with them on the spot, tell them thank you for the offer, but you just cannot do that. If they try to threaten you and say they'll fire you, smile and thank them, tell them you understand their position and leave. Good luck to you. Let us know how it goes.

 

[Tygerwoody]

My thoughts are that you talk little and listen much. But going in and refusing to say ANYTHING would be sort of silly. Keep very good notes of what was said. In fact, it wouldn't be a bad idea to record the meeting. Bring a tape recorder. N.C. is a one party tape state. Taping can be done without the other party's consent.

State your case. State your belief that the job is not equivalent, and the reasons why. Consider this a formal hearing, not a discussion group. Do not let them "probe you." IF you do not talk too much, make only short clear statements, they can't
back you into a corner. DO NOT argue with them, no matter what sort of ridiculous or threatening or incorrect statement they may make. Do not take it personally if they say you were demoted because your work was not good. Be expecting that one.

Remember, you do not have to answer a question just because it is asked.

Present your case as you have presented it to us here. The part about how before you were on FMLA, you were clearly told you would be taking on more responsibility. How the new position is different. What the different clearances are. State that what you want is your old job back. Do not let them pull you into arguing. Have statements in mind that you wish to make. Do not show excess emotion, resist any impules to tell them off, don't get angry, or in any way indicate that you will or will not pursue the matter further. Ask them what they are planning to do to resolve the situation. Ask when you can expect to hear back from them that they are taking action regarding the situation.

Be quiet, professional, polite. Actually, you do have them rather over a barrel here, if what you are saying is right. They should realize this and be willing to offer you some concessions. It's okay to have it in your mind that you will or will not accept these concessions. But DO NOT decide during the meeting to accept anything they offer without being given the opportunity to take it out and "think about it" before accepting. If they demand you do so, insist you settle with them on the spot, tell them thank you for the offer, but you just cannot do that. If they try to threaten you and say they'll fire you, smile and thank them, tell them you understand their position and leave. Good luck to you. Let us know how it goes.

Thank you very much. This is exactly the kind of advice I needed.

 

[Tygerwoody]

Update on my situation.


I've spent a total of 8-9 hours talking to 2 HR representatives and their lawyer. Not only did I talk about my situation, I also voiced a number of other illegal activities and things against company policy that have been going on at the hands of my manager. Here are some clif notes of what I have informed the lawyers.

Demotion of me due to being out on injury. Against FMLA

Manager informing other managers not to use up all their entitlement for paternity leave. Against FMLA and company policy

Manager informing me and other managers that our end of year review and compensation will be affected by FMLA Leave. Against FMLA and company policy

Manager informing my team that we are expected to work overtime, however if we claim it on the books it will be met with disciplinary action. (I am a non-exempt employee. I am not sure what law this breaks, but I know its not legal)

While I was out on FMLA leave, my manager asked a person in my department to reset my username and password. Then proceeded to log into my account and put in my year in objectives for me(among what else I don't know). I work for a very large financial bank. This is a major security violation to log onto someone else's primary active directory account. My user account has special rights that I can reset anyone's password in the company, including multimillion dollar Trader accounts. Against Sarbanes Oxley Act of 2002

There was another instance of my manager asking other employees to give out their usernames and passwords to other employees who were having account issues. I have hard evidence for this. As stated in the previous violation, we have access to reset the passwords of trader accounts. I can't begin to express how serious of a security violation this is. Against Sarbanes Oxley Act of 2002

Upon informing HR of the account security violations, HR informed me to NOT inform our internal IT Risk group. HR said they would handle everything themselves. I have a feeling HR is just trying to protect my manager. I have this all in email as well.

Just recently an employee in my department quit. Upon leaving, he went to HR and pointed out all the laws that have been broken just as I have. Since this, my manager has broke HR confidentiality and has told the other managers in my group that myself and this other employee are working together to try to get rid of him. This manager group has been telling other employees in my department of this as well. Now everyone knows of the HR investigation. The other managers in my team won't even look at me now. I don't know what was said to them.



The HR and lawyer are still doing their "investigation". I'm being treated very differently. I feel like I've been outcasted by a number of people in my department. Meanwhile I'm still working this demoted job. Its on the verge of depressing how I was climbing the ladder in my department, doing extremely well. Now I'm the lowest level employee in my department and management staff hardly acknowledges my existence.

What should I do now? Wait for the investigation to finish? Then what? Anything I should be doing right now? I have spoken to a number of lawyers about my case, but honestly I don't feel strongly about any of them. They seem excited to take on my case, but when I question them about certain labor laws they don't seem like they know their stuff. I've learned more about law from this website than from any lawyer I've spoke to. Any thoughts?

 

[ESteele]

General websites abound offering to match you with a lawyer or lawyers desirous of possibly handling your case, e.g., www.freeadvice.com. I can also recommend contacting the National Employment Lawyers Association, www.nela.org. NELA can put you in contact with dedicated counselors experienced in employment law who would consider taking on your case. If you can clearly and concisely describe your situation in a paragraph or two, these sites can quickly match you with or lead you to lawyers who have expressed a willingness to take on such cases.

 

[startedone]

This is pretty much the expected outcome of talking to HR when a complaint with an appropriate agency is the more logical choice. The company had its chance to comply and may have failed to do so.

When violations of law are concerned (FLMA, WC, OSHA, etc) always file the complaint and don't discuss the issue further with your employer in respect to the subject matter of the complaint.

 

[Tygerwoody]

This is pretty much the expected outcome of talking to HR when a complaint with an appropriate agency is the more logical choice. The company had its chance to comply and may have failed to do so.

When violations of law are concerned (FLMA, WC, OSHA, etc) always file the complaint and don't discuss the issue further with your employer in respect to the subject matter of the complaint.

I signed a contract at work that states I must seek internal HR channels to mediate the situation before seeking outside action. According to them I am violating my agreement if I don't let HR do their investigation first.

 

[ecmst12]

You are not violating any agreement by consulting with a lawyer and you have made your attempt at going through channels. I would be preparing to take the next step...soon.